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Family denied funding for lawyer seeks 'balance' at inquest into police shooting death

A judge’s sweeping review of police oversight in Ontario recommended families of those shot by police receive public funding for legal representation at coroner’s inquests. That hasn’t helped the family of Michael MacIsaac.

Joanne MacIsaac, whose brother Michael was shot dead by a Durham police officer, says it's as if the government expects her "to stand up, as a bereaved sister, and go against seasoned attorneys who are being funded by the government” at the upcoming coroner's inquest. (Rene Johnston / Toronto Star)

The family of Michael MacIsaac believes he suffered an epileptic seizure before he left his house naked the day he was shot.
(FAMILY PHOTO)

When Joanne MacIsaac looks around at the lawyers who will represent the various parties at the upcoming coroner’s inquest into her brother Michael’s death, the same question always comes back to her:

If public dollars are funding all of these lawyers, why does her family have to foot the bill for their own? It’s a problem addressed in a Court of Appeal judge’s recent review of police oversight in Ontario, but one the provincial government has yet to fix.

“This should be a level playing field, funding should be given to everyone,” MacIsaac told the Star. “Either they fund every party involved, or they fund none . . . They don’t facilitate our participation in the process, but they facilitate everyone else's. Perhaps they just want the status quo.”

The inquest, set to begin July 17 in Toronto, will delve into the circumstances surrounding the death of Michael MacIsaac, who was shot by Durham police Const. Brian Taylor on an Ajax street in December 2013.

Michael, 47, was holding a table leg when confronted by police, according to Ontario’s police watchdog, the Special Investigations Unit, which cleared Taylor of criminal wrongdoing. MacIsaac’s family has disputed the SIU’s version of events. They also believe he left his house naked that day after having an epileptic seizure.

The MacIsaacs’ predicament around legal representation highlights the fact that there is no guarantee of funding for a lawyer at a coroner’s inquest for a family of a person killed by police.

The issue was addressed this spring in a recommendation from Justice Michael Tulloch following his sweeping review of Ontario’s police oversight bodies. The provincial government will only say that the recommendation, which calls for publicly-funded legal assistance for families, is among many from Tulloch currently under review.

The police services board and the individual police officers have lawyers who are typically funded directly by tax dollars or indirectly through union dues. There is also a publicly-funded Crown attorney who acts as coroner’s counsel and presents the case to the inquest jury.

“I do have standing at the inquest, but it’s as if they would expect us, if we can’t get legal representation, for me to stand up, as a bereaved sister, and go against seasoned attorneys who are being funded by the government,” said MacIsaac. “How is that fair and balanced? It’s not.”

Former Metro Toronto councillor Bev Salmon wrote last year to politicians, including Premier Kathleen Wynne, urging them to fund lawyers for families, following the inquest into the Toronto police shooting death of Ian Pryce, whose mother, Heather Thompson, is a friend of Salmon’s.

“(Families) can’t be worrying about whether they can afford a lawyer or not. The police are covered, so you need a balance,” Salmon told the Star last year.

She received a reply from the deputy minister at the Ministry of Community Safety and Correctional Services, stating that the coroner’s inquest legal fee reimbursement program assists parents and spouses of individuals whose deaths have been deemed to be the result of a criminal act.

As critics have pointed out, it’s rare for police shootings in Ontario to lead to criminal charges against the officers, including in the MacIsaac case, and so families likely wouldn’t qualify for legal representation funding at an inquest.

In his report made public in April following his review, Tulloch said many affected families felt they were not “adequately supported” at coroner’s inquests.

“Some family members pointed out that the police have their own lawyers, yet they are generally expected to pay out of their own pocket if they want one,” he wrote. “Many of these family members are simply unable to do so. That is unfortunate since families have a special interest in obtaining a complete understanding of the circumstances of the death.

“Without legal assistance or representation, they may not ask the right questions, know what arguments to make when issues arise, or understand how the inquest procedures work.”

The recommendation for funding is just one of dozens that the government said it is reviewing, with no timeline for possible implementation.

“We know that coroner’s inquests can be a difficult time for the families involved. We recognize the importance of family involvement in the process and value the participation of those given standing,” said Yanni Dagonas, a spokesperson for Community Safety and Correctional Services Minister Marie-France Lalonde.

The government’s statements on the recommendation are of little comfort to MacIsaac, who is meeting with Lalonde on Thursday.

“In my view, it’s important that the families be represented to counterbalance the police view,” said lawyer Peter Rosenthal, who has represented many families at police shooting inquests and will be one of the lawyers representing the MacIsaac family.

Rosenthal represented Thompson pro bono at the inquest into her son Ian’s death, but pointed out that it’s not possible for a family to always find a lawyer who can do an inquest for free.

“I was in a position to offer pro bono assistance sometimes because I had another job, but it's not reasonable to expect a lawyer to do it too frequently because a lawyer has to make a living. And these things require a huge amount of time.”

MacIsaac said her family has been denied funding through Legal Aid Ontario’s test case program, which has funded lawyers for families at police shooting inquests in the past. A meeting with Attorney General Yasir Naqvi also proved to be unhelpful, she said.

“The only thing that this process can do would be to make change, and hopefully prevent such shootings from happening in the future. So why is my family responsible to foot the bill for that?”

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